This is our submission to the West Australian Department of Health’s public consultation period regarding abortion law reform. The consultation period closed in 17 December 2022.

This is a submission from the Rationalist Society of Australia (RSA) to the Western Australia government’s community consultation process regarding its proposal for reform of abortion legislation. The RSA is Australia’s oldest freethought organisation, working to promote reason, evidence-based policy and secularism.

We support the right of a woman, in consultation with her medical and mental health advisors, to determine whether to terminate a pregnancy.

We welcome the McGowan government’s commitment to protecting the reproductive rights of women in Western Australia. We note the significant developments in this space in recent years, including the government’s initiative in 2021 to introduce safe access zones around abortion clinics to ensure the right of women to access such services without fearing intimidation or harassment.

We also commend the government for its latest endeavour to bring Western Australia’s abortion laws into alignment with other states and territories and further improve access to safe and timely healthcare for women.

In Western Australia, there remain too many unnecessary barriers for women needing to access time-critical abortion services. We support proposed reforms such as: removing the requirement for two medical practitioners to be involved before a woman can have an abortion; removing provisions requiring mandatory counselling; and removing the requirement for a Ministerial Panel to approve abortions beyond the gestational age limit.

In this submission, we focus on the need to remove religious-based barriers – specifically, publicly funded institutions that refuse lawful health services such as abortion.

Institutional conscientious objection

In Western Australia, as around Australia, publicly funded religious hospitals utilise the notion of ‘institutional conscientious objection’ to prevent lawful abortion services – and also the provision of contraception – being offered in their hospitals, even if the community, the government, individual doctors and patients all agree the services should be provided.

As a recent ABC investigation revealed, health practitioners who work in religious hospitals around Australia say the application of a strict religious code of ethics in their workplaces puts patients’ lives at risk. They told of having to urge vulnerable women to leave the religious hospital and seek urgent help from another public hospital, as the religious hospital would wait too long before performing life-saving procedures.

Women in regional areas are particularly vulnerable to having to rely on religious hospitals for their maternity care. Faced with a possible closure of a secular option for her healthcare, a woman from Geelong, Victoria, has said, “My only other private healthcare option (in Geelong) was St John of God and I’m not religiously affiliated. I would obviously have some concern about the Catholic code of ethics and how that intervenes with women’s healthcare.”

If the West Australian government continues to allow publicly funded religious hospitals to operate in this way, it would, in essence, continue to privilege narrow religious interests above the well-being of women and the wider community. This should not be happening in 21st-century Australia.

The Discussion Paper in this consultation process recognises that Western Australia’s current abortion legislation does not provide “clear guidance to practitioners, services and patients on how conscientious objections should be managed, including in the case of a medical emergency”. It also recognises that while no person, hospital, health institution, other institution or service was under a duty to participate in the performance of any abortion, there was “no requirement on the person or service to disclose such objections”.

However, the regulatory options presented in the Discussion Paper for possible reform of conscientious objection provisions (page 12) do not address the problem of ‘institutional conscientious objection’. Option 1 retains the status quo, and Option 2 only addresses the conscientious objection of individual medical practitioners:

Provide updated provisions to allow health practitioners to conscientiously object with clear and unambiguous directions to refer the patient to another health practitioner who is willing and able to provide abortion care.

While we support the right of individual medical practitioners to exercise a conscientious objection and, therefore, not directly take part in providing abortion or contraception services, we believe taxpayers’ money should not go towards funding religious hospitals that apply an ‘institutional conscientious objection’ to these policy areas.

Obligation to disclose and refer

Women in Western Australia face multiple barriers to accessing safe and timely abortion services due to the combined effect of publicly funded faith-based institutions refusing to provide such services and individual medical practitioners exercising conscientious objection.

Making matters worse, institutions and individuals who have conscientious objections to providing abortion services are not required to disclose their objections to patients or refer them to another provider. As a result – and as the Discussion Paper made clear – women in Western Australia, “may need to visit several health practitioners before obtaining a referral for abortion care”, with those in regional and remote areas especially affected.

We believe there should be full transparency – individual health practitioners and health institutions ought to be obliged to disclose any objections they may have to providing lawful health services and to refer patients to places that will provide such services.

Western Australia should follow the lead of other Australian jurisdictions – such as Victoria and Queensland – in requiring medical practitioners to inform patients of their conscientious objection and to direct them to other medical practitioners who could provide the service.

Such a reform would bring consistency to the application of the ‘obligation to refer’ principle in Western Australian law, given the state’s voluntary assisted dying law already requires medical practitioners to immediately declare their objection and refer patients to other providers.

Religious leaders out of touch

We hold that publicly funded hospitals operating under a religious code of ethics are serving the interests of religious leaders rather than the interests of the general public or the people of the hospital’s faith background.

Religious clerics who claim to speak for their communities are out of touch with their own flocks on many social issues. In Religiosity in Australia (Part 1): Personal faith according to the numbers, social researcher Neil Francis shows how the views of Catholic bishops on issues such as abortion and voluntary assisted dying are at odds with the majority of Catholic Australians – and have long been so.

The 2019 Australian Election Study conducted by the Australian National University showed that, overall, 93 per cent of Australians (including 90 per cent of Catholics), support abortion being available.

Similarly high support was found among other religionists, including 92 per cent of Anglicans, 95 per cent of Uniting/Methodists, and 85 per cent of smaller Christian denominations. Of those Catholics in support of abortion, 61 per cent supported availability on demand. Just 2 per cent of Australians and 1 per cent of Catholics believe it should never be available.

Given these data, Francis argues:

Those clerics continuing to actively oppose abortion choice are still speaking in terms of religious “tradition”. However, even amongst those remaining in their flocks — for many have left — most don’t agree that the prohibition of abortion services is a valid part of their religious tradition. … Thus, prohibitive abortion policy clearly serves the particular interests of the church’s senior hierarchy at the expense of the interests of the Australian — including Catholic — public.

Further, as Francis notes in Religiosity in Australia (Part 2): Religious minds, religious collectives, ‘institutional conscience’ is a confected notion. A ‘conscience’ is the interaction of the private thoughts and emotions of a natural person exercising moral judgement. Institutions are not natural persons; they are legal confections of ‘personhood’.

Francis argues:

Institutions are confections of law, not natural persons, and their codes of conduct that prohibit certain choices are not conscience: they are rules that suppress real conscience and extinguish agency. Such prohibitions are particularly egregious when services are being provided to the public, on the public purse.

When an institution seeks to mandate or prohibit particular actions through a Code of Ethics or Code of Conduct (or mission statement or any other enterprise document), this is not “conscience”. It’s ideological regulation (Beca & Astete 2015). Insofar as it aims to apply penalties to violators of its prearranged conditions, it acts like law, not conscience. In practice it suppresses conscience.

We know the Australian population is becoming increasingly less religious. The 2021 Census showed that people identifying as Christian fell to less than half of the population – 43.9 per cent. Australians identifying as not religious surged to 38.9 per cent – and will likely overtake Christians at the 2026 Census. Governments that ignore this long term trend towards a less religious population, with increasingly socially progressive attitudes, are likely to lose support at the ballot box.

Conclusion and recommendations

It is untenable for the public funding of healthcare services to remain hostage to religious dogma that is becoming increasingly irrelevant to most West Australians – including most religious people who have increasingly progressive views on issues such as access to abortion.

There may be good policy reasons for permitting individual healthcare workers to conscientiously object to providing abortion services, but there are not good policy reasons for permitting a publicly funded hospital to have a blanket prohibition on its healthcare workers providing lawful healthcare.

In Victoria, Fiona Patten MLC proposed a workable model for addressing this problem through the Health Legislation Amendment (Conscientious Objection) Bill 2022 (Vic). The bill would have done two key things:

• impose an obligation on publicly funded denominational hospitals that provide gynaecological, obstetrics or neonatal services to provide advice and services for contraception, the supply of contraceptives, and medical and surgical abortion; and

• prohibit publicly funded denominational hospitals from directing or otherwise causing a registered health practitioner employed or engaged by the denominational hospital to refuse to provide such services on the basis of the hospital’s conscientious objection.

Importantly, nothing in the bill would have affected an individual registered health practitioner’s right to conscientiously object to providing such services or advice on the basis of that individual’s own sincerely held beliefs or moral concerns.

In Western Australia, it is unacceptable that institutions and medical practitioners are not required to disclose their conscientious objections, nor obliged to refer patients to where they can get support.

We therefore recommend that the West Australian government:

1. Enact a version of the Health Legislation Amendment (Conscientious Objection) Bill 2022 (Vic), requiring that any state-funded hospital providing gynaecological, obstetrics or neonatal services provide advice and services for medical and surgical abortion, and also contraception and the supply of contraceptives.

2. Introduce requirements for health institutions and medical practitioners to immediately and transparently disclose their conscientious objections, and to refer patients to places where they can get support.